Thoughts of an activist lawyer

IHL: The Project

The Philippine Red Cross has designated the month of August as International Humanitarian Law Month. This is a an opportunity to write about recent developments in the law applicable in times of armed conflict.
Last year, the United States Supreme Court took a million steps backward when it rendered its opinion in the case of Holder vs. Humanitarian Law Project. Before this decision, the same court was praised for a series of decisions which declared: one, that the war against terror is governed by IHL; and two, that the procedure adopted by the Guantanamo Military Commission, which deprives the respondents access to evidence submitted against him- is in violation of common article three to the Geneva Conventions for failing short of standards of fairness in judicial proceedings recognized by civilized nations. The case of Holder forfeited almost all gains derived from the earlier cases of Hamdi, Hamdan and Boumediene.

According to its Web site, The Humanitarian Law Project is a “is a non-profit organization founded in 1985 dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law”. One of its projects is the training of members of the Kurdistan Workers Party in Turkey and the Tamil Tigers in Sri Lanka on the existing UN Human Rights mechanisms, as well as capacity building to equip members of these two organizations with knowledge and skills to enable them participate in peace talks. Both groups have been classified by the US State Department as terrorist groups.

The problem for the Humanitarian Law Project started when the US Congress legislated the Patriot Act, a law specifically crafted to deal with post-September 11 terrorism. Among others, the law prohibits the giving of “material support to groups designated as terrorists”. Penalty provided for breach of this prohibition is prison term of up to 15 years of imprisonment.

The Humanitarian Law Project then filed a petition for declaratory relief to determine if the resources it is allocating to promote peace in Kurdistan and Sri Lanka may be considered as breaches of the Patriot Act. In a major blow to the promotion of human rights and humanitarian law, the US Supreme Court said that it did: “Congress meant to preclude any type of aid to such groups because this assistance could help to “legitimate” the terrorist organization. Aid of all types also could help the group conserve resources that could then be channeled toward terrorist activities”.

In a dissenting opinion, Justice Breyer argued that while acknowledging the importance of giving the political branches great deference in matters of national security, the court’s reading of the law was too intrusive on the rights of the Humanitarian Law Project and its members. Not even the “serious and deadly problem” of international terrorism can require automatic forfeiture of First Amendment rights or freedom of expression and freedom of association.

On the day the Supreme Court ruling was promulgated, David Cole of the Center for Constitutional Rights, counsel for the Humanitarian Law Project, after which we patterned our own Center for International Law, declared: “According to today’s Supreme Court decision, advocating for human rights and peace can be prosecuted as a ‘terrorist’ crime, punishable by 15 years imprisonment. Under this ruling, it does not matter that the speaker intends to support only nonviolent activity, and indeed seeks to discourage a resort to violence. It does not matter if the speech in fact convinces its listeners to abandon violence.”

It would seem hence that while the US Supreme Court may be credited for strengthening the binding nature of IHL by ruling that the war against terror is governed by international law, it nonetheless stunted efforts by civil society to promote peace by encouraging fightersto lay their arms and resort to the rule of law instead. “You win some, and lose some,” as the saying goes.

Meanwhile, back home, President Nonoy Aquino, son of democracy icons Ninoy and Cory Aquino, ironically declared that the notorious Human Security Act will be amended to do away with the requirement of notice as a precondition for surveillance. As stated by Senate President Juan Ponce Enrile, principal author of the law, he is not aware that there was this provision in the law, a view which I confirm. Nonetheless, heed must be given to the warning given by the UN Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism:: “respect for human rights is a cornerstone of any successful fight against terrorism”.

Kudos too to my two favorite Senators, Mirian Defensor-Santiago and Loren Legarda, for successfully sheperding the Senate concurrence of the Rome Statute of the International Criminal Court through the sub-committee level. There could be no better way to celebrate IHL month than becoming a state party to the ICC!